Corporate Accountability and Legal Advocacy for Survivors the POSH Act, 2013, Corporate Social Responsibility under the Companies Act, 2013, and Contract Law

Question 1. Trace the legal recognition of the right against sexual harassment at the workplace in India, beginning with Vishaka v. State of Rajasthan (1997), and explain how the Vishaka Guidelines were codified into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. What key obligations does the Act place on employers, including the constitution of an Internal Complaints Committee (ICC)?

1. Position before Vishaka: the criminal‑law background

Before 1997, India did not have a single law that dealt with sexual harassment at work. Still the legal system had guarantees and criminal rules that could tackle certain kinds of wrongdoing. Article 14 states that every person should be treated equally under the law and enjoy equal protection. Article 15 said discrimination on grounds, including sex, is not allowed. Article 19(1)(g) protected the right to work or run a trade. Article 21 protected a person’s life and personal liberty. The big point about the law is that the Supreme Court had already started to read the dignity and bodily integrity of women out of the Constitution and criminal law. In State of Punjab v. Major Singh (AIR 1967 SC 63), the Supreme Court looked at how Section 354 of the IPC applies to an infant. The majority said that a woman’s "modesty" does not depend on her age and that sexual conduct can be covered by Section 354. This case was not about a workplace. It was part of older law that protects women from sexual intrusion.

In Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194, the Supreme Court looked at claims that a senior police officer had an act toward a senior woman IAS officer. The Court said that the allegations showed the elements of a crime under Section 354 IPC and denied the idea that the conduct was too minor. The decision tied the idea of outraging modesty to a woman’s dignity and decency. Again, this was not a workplace case. It shows how the old criminal law dealt with sexual misconduct.

In Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490 the Supreme Court addressed allegations of rape and examined interim compensation within the process. This case matters for the growth of judicial care for the rights and dignity of women who suffer sexual violence but it did not establish a framework for sexual harassment at work. Therefore, these cases should be used as background law not as early pre‑Vishaka workplace‑harassment decisions.

1.2 Vishaka v. State of Rajasthan (1997)

The immediate constitutional case in Vishaka came after Bhanwari Devi, a worker in Rajasthan, was sexually assaulted, raising the larger issue of protecting working women. The Supreme Court faced a void: no specific national law gave a full system to stop and correct sexual harassment at work. In Vishaka v. State of Rajasthan (1997) 6 SCC 241, the Supreme Court said that sexual harassment at work violates rights, such as the guarantees of gender equality and dignity. The Court linked sexual harassment to Articles 14  , 15  , 19(1)(g), and 21. It argued that a woman’s right to work is truly protected when her workplace is safe and free from sexual harassment.

The Court also used standards, such as CEDAW, which are in line with constitutional ideas to help explain fundamental rights when no local law exists. It then approved the Vishaka Guidelines as rules that would run until Parliament made a law. The Guidelines gave employers and other responsible bodies both procedural duties. The Guidelines described harassment in a wide sense, covering unwanted physical contact and advances, demands or offers for sexual favours, sexually coloured remarks, showing pornography and other unwanted physical, verbal or non‑verbal actions of a sexual kind. They also acknowledged situations like threats to employment, disruption of work, a hostile work environment, and humiliating treatment that harms health or safety. Under Vishaka, the employer had duties such as stopping or discouraging harassment giving ways to resolve or prosecute cases, and building a solid complaints system. The Court also demanded a complaints committee led by a woman with women members and an outside member who knows about sexual harassment.

1.3 Post‑Vishaka judicial development before the statute

Vishaka did not stop progress. Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 strengthened the idea that any act that looks like harassment should be judged with respect to protecting women’s dignity and the workplace standard set by Vishaka. The Supreme Court stressed that physical touch is not the type of sexual harassment; actions that make a hostile or scary environment can also lead to serious legal outcomes.

D.S. Grewal v. Vimmi Joshi (2009) 2 SCC 210 dealt with claims in a school and whether the Vishaka framework applied. The case shows that the Guidelines were meant to work in all kinds of institutions and that following them was not optional just because a group had its internal rules.

Medha Kotwal Lele v. Union of India (2013) 1 SCC 297 was very important because years after Vishaka the Supreme Court saw that the Guidelines were still not followed. The Court ordered the authorities to make sure the Guidelines were truly applied and highlighted that they had to work in practice not on paper. This ongoing judicial push helped create the need for Parliament to pass a law.

1.4 Codification through the Act 2013

Parliament made the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act started on 9 December 2013. It turned the court rules into a law that includes definitions, how to file complaints, how to investigate, temporary relief, employer responsibilities, rules about secrecy, fines for not following the law and a special system for places with fewer than ten workers or when the complaint is about the employer. The main shift can be said as: guarantees and earlier protection for women → Vishaka Guidelines in 1997 → court enforcement and implementation cases → Parliament’s POSH Act, in 2013. The Act did not just copy every word from Vishaka; it made a legal process and gave clear duties to employers, Internal Committees and Local Committees.

1.5. Functioning of the Internal Committee

Section 4 requires every employer to create an Internal Committee by a written order. If a company has offices or administrative units in locations, Section 4 requires an Internal Committee at each relevant unit or office. The Internal Committee must include a woman Presiding Officer at a level of at least two employee members who are preferably committed to women’s causes or have social work or legal experience, and one external member from an NGO or association that is committed to women’s causes or who is familiar with sexual‑harassment issues. At least half of all members of the Internal Committee must be women. Each member serves for a term set by the employer. The term cannot be longer than three years. The Internal Committee must contain a woman Presiding Officer at a senior level. The Internal Committee must also have at least two employee members. These employee members should preferably be committed to women’s causes. Should have social work or legal experience. The Internal Committee must include one external member. This external member should come from an NGO or association that is committed to women’s causes. Should know about sexual‑harassment issues. At least half of all members of the Internal Committee must be women. The employer sets the term for each member. The term cannot be longer than three years.

The external member is important because the external member brings independence and specialised understanding to the Internal Committee. The employer must also create the conditions that let the Internal Committee work well. The employer must provide facilities to help the Internal Committee make sure witnesses attend, give information and help a woman who decides to file a criminal complaint. The external member is not a nice extra; the external member is a legal requirement under Section 4. If the employer does not appoint a member, does not appoint a woman Presiding Officer or does not make sure that at least half of the members of the Internal Committee are women, the Internal Committee can be challenged. These failures show that the employer is not following the law. The exact legal result depends on the facts and the type of mistake. An Internal Committee that is not properly set up hurts the fairness and credibility of the whole inquiry.

The Act has a complaint procedure. Under Section 9, an aggrieved woman can file a written complaint within the statutory time limit. The Internal Committee may extend the time if it records reasons in writing. Section 11 starts the inquiry. Section 12 allows measures during the inquiry when a written request is made. Section 13 covers the inquiry report and its recommendations. Section 16 keeps the complaint, the identities of those involved in the proceedings and the recommendations confidential except where the law allows an exception. Under Section 9, a written complaint should normally be filed within three months after the incident. If there were incidents, the complaint must be filed within three months after the last incident. The Internal Committee or Local Committee may add another three months if it writes down the reasons and believes that the woman could not file the complaint on time because of circumstances. The Act also sets a timeline. The inquiry should normally finish within 90 days. The inquiry report must be given within 10 days after the inquiry ends. The employer or District Officer must act on the recommendation within 60 days. An appeal can usually be filed within 90 days following the rules and service conditions. These deadlines matter because delays can undermine the purpose of the law.

Section 10 allows conciliation. Before starting an inquiry, the Internal Committee may try conciliation if the aggrieved woman asks. The Internal Committee cannot use money as the main reason for conciliation. If a settlement is reached, the Internal Committee must write it down. Give copies to everyone involved. The Internal Committee should not conduct another inquiry about the complaint that has been settled. Section 26 says what happens if the law is not followed. If the employer does not set up the Internal Committee, does not act under the Act or does not meet legal requirements, the employer may be fined up to ₹50,000. If the employer repeats a violation, the fine can double. The Government or local authority can also cancel, withdraw or refuse to renew the licence, registration or approval needed to run the business or activity. Section 19 lists the duties of the employer. The employer must create a working environment. The employer must provide information about harassment and its consequences. The employer must run awareness programmes. The employer must run orientation programmes for Internal Committee members. The employer must provide facilities to the Internal Committee. The employer must help the Internal Committee get the people it needs to attend. The employer must monitor that reports are submitted on time. The employer must also treat harassment as misconduct under the applicable service rules and act according to the Act and the rules.

1.6 Detailed employer obligations under the Act.

The employer’s responsibilities under the Act go beyond simply appointing an Internal Committee. The Act follows a protective and remedial model.

First, the employer must provide a working environment. This duty covers the office and also any places the employee visits because of work, such as employer‑provided transport, official events, business trips and other work‑related spaces. In the workplace, the employer should also put in place reasonable safeguards for professional digital communication and for remote work.

Secondly, the employer must display, in a clear place, information about the ban on harassment, the legal punishments for sexual harassment and the rules that create the Internal Committee. This duty makes sure that employees know their rights and the way to use the mechanism.

Thirdly, the employer must organise awareness programmes for employees and orientation programmes for members of the Internal Committee. Training should cover the definition of sexual harassment, complaint procedures, confidentiality, principles of natural justice, protection against retaliation and the difference between conciliation and inquiry.

Fourthly, the employer must give the Internal Committee the facilities needed to handle complaints. These facilities include a place for hearings, access to relevant documents, administrative support, help in getting witnesses to attend and cooperation in obtaining information. The Committee must stay functionally independent even though the employer supplies help.

Fifthly, the employer must help a woman who decides to file a complaint. The POSH inquiry cannot replace the investigation when the alleged conduct is an offence. The employer must also make sure that the complainant does not face retaliation, victimisation, bad appraisal or discriminatory treatment because she made a complaint.

Sixthly, the employer must treat harassment as misconduct under the service rules that apply. When the Committee finds misconduct, the employer must take action. The disciplinary action must be proportional and fair in procedure. Match the organisation’s service rules.

Finally, the employer must ensure that the Internal Committee submits reports on time. Annual reporting is not paperwork; it lets the employer and regulatory authorities check whether the statutory mechanism works well.

1.7 Legal significance

The legal significance of Vishaka is not that it created a set of workplace rules. It made the problem constitutional by treating workplace harassment as a breach of fundamental rights and used the courts to fill a gap in law. The POSH Act then gave the framework. Today the employer’s duty is both preventive and remedial. An employer must not wait for an incident; it must set up a system that can prevent, receive, investigate and respond correctly to complaints.

Question 2. Examine the definitions of 'aggrieved woman' and 'workplace' under the POSH Act, 2013. Does the Act extend to remote or virtual work arrangements and to organisations such as NGOs and foundations, and what interim protections are available to a complainant while an inquiry is pending?

2.1 Aggrieved woman

Section 2(a) defines "aggrieved woman" in a wide way. In a workplace, it means a woman of any age, whether she works or not, who says she has faced harassment by the respondent. In a dwelling or house, it covers a woman of any age who works there. This wording matters because the statutory protection is not limited to an employee‑employer relationship.

Section 2(f) also gives "employee" a meaning. It includes temporary, ad‑hoc and daily‑wage workers, people hired through agents, contract workers, probationers, trainees, apprentices and people who work voluntarily or otherwise. This broad drafting fits the aim of the law.

2.2 Workplace

Section 2(o) uses a definition of workplace. It covers government departments and establishments, private‑sector organisations and private ventures, schools and vocational centres, hospitals and nursing homes, sports institutions and venues and any place an employee goes to because of work transportation that the employer provides. A dwelling or house is also put in explicitly. The definition clearly puts an " organisation" inside the private‑sector group, so NGOs are not excluded from the POSH rules just because they are non‑profit. The same logic works for foundations, trusts, societies and similar groups when they fit the statutory workplace definition. The focus is on the kind of organisation and workplace, not on whether it makes money.

2.3 Remote and virtual work

The law was made in 2013. Does not use the words "virtual workplace "work‑from‑home", or "online workplace”. So it is wrong to say the Act makes rules for every type of harassment. Still, Section 2(o) is broad. Covers places linked to work, and Section 19 asks employers to give a safe working environment. Courts and official advice have been looking more at the effects of remote work. For a complaint, the safest legal analysis depends on facts. If the alleged conduct happens through video meetings, work email, employer messaging systems or other professional interactions that relate to employment, then there is a strong legal and purpose‑based reason to treat it as part of the workplace protection framework. The Act does not give a stand‑alone definition that makes every private online interaction or every personal social‑media interaction automatically a workplace. The link to employment and the surrounding circumstances must be examined. A recent academic discussion has pointed out that the Act does not clearly cover workplaces, and it calls this a zone of interpretive uncertainty. The Patna High Court’s POSH information portal also recognises the problem of online harassment during the work‑from‑home era. These sources should be seen as evidence of how the law's being interpreted, not as a replacement for statutory language or a Supreme Court decision.

2.4 Interim protections during inquiry

Section 12 gives protection. While an inquiry is ongoing, if an aggrieved woman writes a request, the Internal Committee or Local Committee may suggest that the employer move the woman or the respondent to another workplace, give the aggrieved woman leave for up to three months or offer other relief that is prescribed. Leave under this rule is in addition to any leave the aggrieved woman would otherwise be entitled to. The Rules also outline measures such as preventing the respondent from reporting on the complainant’s work performance or from writing a report, and in schools or colleges stopping the respondent from supervising the complainant’s academic work. The employer must follow the recommendations of Section 12. Report back to the Committee on how the case was handled. The aim is protection, not punishment. Interim relief is meant to lower the risk of intimidation, retaliation, interference with the inquiry or continued exposure to a situation that may be harmful while the allegations are still being examined.

2.5 Principles governing interim relief

Interim relief should be granted after considering the safety, dignity, privacy and working conditions of the complainant. It should not be seen as a punishment imposed on the respondent before the inquiry ends. The Internal Committee should write down why it recommends a measure and should choose the least disruptive option that can prevent further harm or interference.

Examples of measures include:

temporary transfer of the complainant or the respondent; change in reporting structure; restriction on direct communication between the parties; remote attendance or a change of working hours; leave for the complainant; restraint on the respondent from supervising the complainant; protection against adverse appraisal or retaliatory action; preservation of electronic evidence; and restriction on access to confidential complaint material. The Internal Committee must also make sure that interim relief does not indirectly punish the complainant. For example, moving the complainant without looking at the respondent’s behaviour or the needs of the organisation could put an unfair load on the person who made the complaint. Every measure must therefore be judged in view of the complainant’s preferences and the real situation.

Question 3. Discuss the concept of Corporate Social Responsibility (CSR) under Section 135 of the Companies Act, 2013, including which companies must constitute a CSR Committee and spend on CSR activities. With reference to Schedule VII, examine whether legal advocacy, survivor support, and public-awareness initiatives — of the kind undertaken by organisations such as the Afterlight Foundation — qualify as permissible CSR activity.

3.1 Meaning and statutory basis

Corporate Social Responsibility under Section 135 is a framework that requires certain companies to carry out CSR governance and spending. The threshold in Section 135(1) is that a company must have, in the financial year, a net worth of ₹500 crore or more or a turnover of ₹1,000 crore or more or a net profit of ₹5 crore or more. Such a company must create a CSR Committee following the rules and any later amendments that apply to that company.

Section 135(5) says that the Board must ensure that the company spends at least 2 % of the average net profits earned during the three most recent financial years on its CSR policy. This must be done within the framework and in line with the way unspent amounts are treated under the Act and rules. The way net profit is calculated for CSR purposes follows Section 198 and the CSR Rules, not the simple accounting figure that people sometimes call profit after tax. When Section 135 and Schedule VII came into force, the government said that qualifying companies must spend at least 2% of the average net profits of the previous three financial years. Companies must also explain why any amount was not spent, as required at that time. Over the years, the rules have changed. Therefore, for any given year, you should look at the current Act and the CSR Rules to know what is required.

The CSR Committee rules and how to handle CSR money have changed because of amendments. So before giving any advice, you must review the company’s finances and the CSR Rules that apply to that year. CSR work is also governed by the Companies (Corporate Social Responsibility Policy) Rules of 2014. Those rules set limits on who can carry out CSR, how impact must be measured, how reporting should be done and what administrative costs are allowed.

3.2 CSR Committee and Board responsibilities

The CSR Committee helps the Board pick. Suggest the CSR policy, decide how much money to spend and keep an eye on the policy. The Board must approve the CSR policy, make sure the activities fit within Schedule VII and check that spending and reporting rules are obeyed. Amendments have changed the rules about how the CSR Committee must be formed. It depends on the details in Section 135. A company must not think of CSR as a charitable fund. CSR work must fit the CSR framework, be done in the allowed way and follow the CSR Rules. Ordinary business costs or activities that the Rules forbid cannot become CSR just because the company calls them CSR.

3.3 Schedule VII and survivor‑support initiatives

Schedule VII lists areas: it covers education and vocational skills that help people get jobs; it supports gender equality and women's empowerment; it builds homes and hostels for women and orphans; it works to cut inequalities for socially and economically disadvantaged groups; and it sets specific contributions for socio‑economic development and relief. Because of this wording, Schedule VII clearly links CSR to women's empowerment. For a group like the Afterlight Foundation, work such as survivor support, legal awareness for women, gender‑equality lessons, skill‑building, counselling or rehab could fit into a Schedule VII area if the specific work and how it is done meet the Act and CSR Rules. The word "legal advocacy" alone is not listed as its own Schedule VII item. A safer legal view is that a legal‑advocacy plan must be linked to a CSR purpose, such as women’s empowerment, gender equality, education, livelihood help or another Schedule VII area instead of assuming that every legal activity is automatically allowed. Public‑awareness programmes can also qualify if they are truly linked to a Schedule VII purpose. For instance, a programme that teaches women about their workplace rights and stops sexual harassment connects to gender equality and women's empowerment. On the other hand, a political campaign, a project made only for the company’s own marketing, or an activity that the Rules exclude must be examined separately and cannot be allowed just because it sounds social.

Survivor support can be framed as CSR when it fits within Schedule VII and the CSR Rules. Clear examples are women’s education programs, job‑training and livelihood help, gender‑equality awareness, women’s facilities and support programs aimed at cutting inequalities. If a legal‑aid or advocacy part is added, you must write down how it links to the chosen CSR category and make sure the group doing the work and the way money is spent follow the Rules.

3.4 Relevant CSR jurisprudence

In the case of Shri Santosh Meenakshi Textiles Pvt. Ltd. Versus the Registrar of Companies, Company Appeal (AT) No. 335 of 2018, decided 1 July 2019, the NCLAT looked at whether the company qualified under Section 135 and how to compute the net profit for CSR spending. The Tribunal found that the company met the required threshold and must set up a CSR Committee. It also corrected the mistake of using one year’s profit to calculate the spending. The Tribunal said that Section 135(5) requires using the net profit of the last three financial years. This case is helpful because it shows that CSR is a duty, with clear limits and calculation rules. It is not a Supreme Court ruling, so it should be cited as NCLAT authority for the point decided. There is no body of Supreme Court decisions that directly decide whether a specific survivor‑advocacy project is a Schedule VII CSR activity. Therefore, the legal conclusion about Afterlight‑type activities should be presented as an interpretation, supported by Schedule VII and the CSR Rules rather than as a made‑up court ruling.

3.5 Applying CSR to Afterlight Foundation

Assuming that Afterlight Foundation is an implementing entity and that the proposed project is approved through the company’s CSR governance process, the following activities are more likely to qualify:

1. Public workshops that explain sexual harassment rights and how to file complaints.

2. Training programs for women from communities.

3. Counselling, rehabilitation and livelihood support for survivors.

4. Help for accessing services and government support schemes.

5. Public education about gender equality and safe workplaces.

6. Capacity building for NGOs that work on women’s empowerment.

The proposal should clearly state the Schedule VII category for each activity. It should identify beneficiaries, objectives, measurable outcomes, implementation partners, budget, reporting process and confidentiality safeguards. A CSR proposal should not just use terms like "legal advocacy" or "corporate accountability”. It should explain the problem, the eligible CSR purpose, the planned intervention and how the project will create a measurable public benefit.

For example, the following description is stronger: "The project will provide gender‑equality education, workplace‑rights awareness and referral support to women workers from vulnerable communities with the objective of improving access to remedies for sexual harassment and strengthening women’s participation in the workforce." This is preferable to "The project will conduct advocacy on corporate misconduct." The first description identifies the beneficiaries, purpose and connection with gender equality and women’s empowerment, while the second may appear too broad or linked to litigation or ordinary legal services.

Question 4. Explain the essential elements of a valid contract under the Indian Contract Act, 1872 — offer, acceptance, consideration, capacity and free consent — and discuss how these principles apply to employment and service agreements, including confidentiality and non-disclosure obligations relevant to corporate and advocacy work.

4.1 Basic framework

Section 10 of the Indian Contract Act 1872 gives the test: an agreement becomes a contract when it is made by the free consent of parties competent to contract for a lawful consideration and lawful object and is not expressly declared void. The Act’s rules on proposal and acceptance, competency, consent, free consent, lawful consideration and object and void agreements must all be read together. An offer or proposal means a willingness to do or not do something in order to obtain another’s assent. Acceptance must be absolute and unqualified under Section 7. Communication rules are in Sections 3 and 4. Section 8 recognises acceptance by performing the conditions of a proposal or receiving consideration in the circumstances contemplated by the provision. Consideration is defined in Section 2(d). In terms, it is something of value or legal detriment/benefit recognised by law and given at the desire of the promisor. Capacity is governed by Section 11, which requires majority, sound mind and absence of legal disqualification. Section 12 explains soundness of mind for contracting purposes. Consent under Section 13 means that parties agree upon the thing in the same sense. Section 14 requires consent. Sections 15 to 18 identify coercion, undue influence, fraud and misrepresentation. Section 19 generally makes agreements induced by coercion, fraud or misrepresentation voidable at the option of the party, while Section 19A deals specifically with undue influence.

4.2 Application to employment and service agreements

An employment agreement usually identifies the employer and employee duties, remuneration, working arrangements, leave, termination provisions, confidentiality, intellectual property and dispute‑resolution arrangements. The general law of contract applies. Employment contracts also operate within labour, equality, privacy, workplace‑safety and other mandatory legal frameworks. A contractual clause cannot lawfully remove a right.

Offer and acceptance are relevant to appointment letters and service agreements. In Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co. AIR 1966 SC 543, the Supreme Court applied Sections 3 and 4 to communication and considered when acceptance through telephone becomes complete. The case is useful for corporate practice because electronic communications raise similar questions about when and where contractual assent is communicated, although email and electronic transactions must also be considered under the Information Technology Act and applicable electronic‑contract principles.

Confidentiality clauses are common in jobs and consulting deals. They may ask workers or consultants to keep trade secrets, client details, personal data, internal documents, investigation material or proprietary information. A non‑disclosure agreement is enforceable only when it meets contract rules and does not clash with mandatory law or public policy. A confidentiality obligation in a POSH‑related workplace needs care. Section 16 of the Act creates statutory confidentiality rules about the complaint, identities and proceedings. Thus, an NDA should not be. Read as a tool to hide a statutory complaint, stop cooperation with the Internal Committee or block a lawful criminal investigation or court proceeding. Contractual confidentiality can add to confidentiality, but it cannot beat a mandatory statutory duty. Section 27 of the Contract Act also matters when job contracts have restraints. Indian law usually treats restraint‑of‑trade agreements as void in the parts covered by Section 27 except for recognised exceptions and court rulings. A company must therefore separate a confidentiality duty from an overly broad restraint on an employee’s future job.

In Central Inland Water Transport Corporation Ltd. V. Brojo Nath Ganguly, (1986) 3 SCC 156, the Supreme Court looked at a service condition and used ideas about public policy and unequal bargaining power. The case matters for drafting because job terms are not safe from court review just because an employee signed them. The exact enforceability of a clause depends on the clause, the parties, the statutory setting and the facts.

4.3 Validity of confidentiality and NDA clauses

A confidentiality clause must be drafted with precision. It must name the protected information, the people bound, the allowed purposes of disclosure, the time the obligation lasts and the penalties for breach. It must also list exceptions for disclosures:

1 required by law;

2 made to a court, police authority or statutory regulator;

3 made to a lawyer, counsellor, doctor or other professional adviser;

4 necessary for filing or pursuing a complaint;

5 necessary for participating in an Internal Committee inquiry;

6 concerning information already in the public domain without the employee's breach.

An NDA must not include wording that threatens discipline just because an employee goes to the Internal Committee, the police, a court, a labour authority or another legal forum. Such a clause may conflict with rights and may stop people from reporting. The employer must also separate business data from data about misconduct. A company can truly protect trade secrets, customer data and proprietary information. It cannot use trade‑secret language to hide unlawful acts or block a statutory inquiry.

Question 5. Compare the remedies available to a survivor of workplace harassment under the POSH Act, 2013 with remedies available under criminal law (Section 354A IPC / the corresponding provision of the BNS, 2023) and under general civil law. What factors influence a survivor's choice of forum, and can these remedies be pursued simultaneously?

5.1 POSH remedy The POSH Act creates a workplace system

A complaint can be filed with the Internal Committee where it applies or to the Local Committee in the situations the Act specifies. The process can lead to findings and recommendations about action, compensation and other legal outcomes. The system focuses mainly on the workplace. Aims to provide prevention, investigation and redress in the workplace. A key point is that the POSH Act is clearly in addition to existing laws. Section 28 says the Act adds to and does not replace any law that is in force now. So using the system does not stop criminal‑law remedies by itself.

5.2 Criminal‑law remedy

IPC section 354A covers types of sexual harassment such as unwanted and clear sexual overtures with physical contact, advances, demands or requests for sexual favours, showing pornography against a woman’s will and sexually coloured remarks. Under the Bharatiya Nyaya Sanhita, 2023, the similar offence is in Section 75, which also lists acts of sexual harassment. The penalty under Section 75 is graded. Physical contact and advances that involve clear sexual overtures, a demand or request for sexual favours and showing pornography against a woman’s will can lead to imprisonment for up to three years or a fine or both. Making coloured remarks can lead to imprisonment for up to one year, a fine or both. Criminal proceedings have a legal purpose rather than an internal workplace inquiry. Criminal proceedings involve investigation and prosecution by the criminal justice system. May bring criminal punishment if guilt is proved according to criminal standards. A survivor may therefore consider criminal law especially where alleged conduct is an offence or where criminal accountability is sought.

5.3 Civil and other remedies

Depending on the facts, a survivor may also have remedies. Civil remedies include damages or other relief recognised under civil law. A contractual or employment dispute may also bring remedies before a labour or service forum depending on the employment relationship and the applicable statute. Constitutional remedies may be available in cases, especially where public authorities or public employment are involved. The choice of forum depends on factors such as the nature of the conduct, the relationship between the parties, the workplace structure, the availability of an Internal Committee, the urgency of relief, the desired remedy, confidentiality considerations, limitation and procedural requirements and whether the conduct also is a criminal offence. A legal practitioner should analyse the facts and the applicable forum‑specific law rather than assume that one forum automatically replaces another.

5.4 Simultaneous remedies

Yes, remedies can operate simultaneously where the law permits and where the facts give rise to separate causes or proceedings. The POSH Act itself is framed as additional to laws. A workplace inquiry does not normally prevent a complainant from approaching the police when the allegations disclose an offence. At the time, the two processes have different purposes and standards and evidence or findings in one proceeding should not be mechanically treated as determinative of the other.

The Supreme Court’s jurisprudence in Aureliano Fernandes v. State of Goa, Civil Appeal No. 2482 of 2014, judgment dated 12 May 2023, is particularly important for understanding the need for a POSH Act inquiry and procedural fairness. The Supreme Court examined the process that arose from sexual‑harassment allegations at Goa University and emphasised compliance with the statutory framework and the need for institutions to take the POSH Act regime seriously. The Supreme Court emphasised that the mere constitution of a Committee is insufficient. Institutions must ensure that the Committee is properly constituted, trained, accessible and capable of conducting an inquiry. The Supreme Court also directed authorities to undertake wider compliance measures, including verifying the constitution of Internal Committees, ensuring awareness and conducting sensitisation programmes. The decision therefore shifts the emphasis from compliance to effective implementation.

The following three cases are selected as primary case studies for the three categories assigned in the task. Each digest separately identifies the binding ratio. Avoids presenting every judicial observation as ratio decidendi. Where no distinct obiter is necessary to the decision, the entry expressly says so rather than inventing an obiter proposition.

Case 1. Vishaka Guidelines & the POSH Act 2013: Employer Liability

Vishaka & Ors. V. State of Rajasthan & Ors. (1997), Citation: (1997) 6 SCC 241; AIR 1997 SC 3011, Coram: J.S. Verma, C.J.I.; Sujata V. Manohar, J.; B.N. Kirpal, J.,Judgment: 13 August 1997, Judgment: Indian Kanoon / Supreme Court case listing.

Issue before the Court

Whether in the absence of legislation dealing with sexual harassment at the workplace, the Supreme Court could formulate binding guidelines to protect working women and enforce their fundamental rights.

Brief Facts

The proceedings arose from a public interest case about harassment of women in workplaces, which was sparked by the sexual assault of Bhanwari Devi in Rajasthan. The petitioners wanted legal protection against sexual harassment at work. The Court had to fill a gap in the law and decide what the Constitution says about women’s safety and dignity at work.

Ratio Decidendi

The Supreme Court said that sexual harassment in workplaces violates the rights to equality and dignity, and it can also hurt a person’s right to do a job or business. Because no specific law was made to cover harassment in workplaces, the Court could safely set out rules and standards to guard these basic rights. The Vishaka Rules were meant to work until proper law was made, and the Supreme Court treated them like law under Article 141.

Obiter Dicta / Important Observations

The judgment talked a lot about agreements and norms, especially CEDAW and how using international standards together with constitutional promises helps when there is no local law. These comments support the way the Court interpreted the law. The main decision, however, was that the Constitution recognises harassment in workplaces and that the Court issued binding rules to fill the legal gap.

Significance / Link to cases

Vishaka is the first major decision about sexual harassment in workplaces. Later, the case of Apparel Export Promotion Council v. A.K. Chopra used and strengthened the Vishaka rules; Medha Kotwal Lele later looked at problems in applying the rules; and Parliament eventually made the POSH Act in 2013. This decision is the link between constitutional rights and the later statutory law.

Case 2. Corporate Social Responsibility under the Companies Act 2013

Shri Santosh Meenakshi Textiles Pvt. Ltd. V. Registrar of Companies Tamil Nadu

Court: National Company Law Appellate Tribunal, New Delhi, Case: Company Appeal (AT) No. 335 Of 2018, Judgment: 1 July 2019, Bench: Justice A.I.S. Cheema, Member (Judicial) and Balvinder Singh, Member (Technical)

Issue before the Tribunal

Did the company fall under Section 135(1)? Was the company required to set up a CSR Committee? How should the average net profit be calculated for the CSR spending rule under Section 135(5)?

Brief Facts

The company reported a profit before tax that was more than ₹5 crore for the year 2013-14, but it had losses in the two years before that. The company argued that it was not under the threshold or that the negative average of the years meant it did not have to pay for CSR. The NCLT had told the company to follow CSR rules but had calculated the amount using the profit from the year before. The company appealed.

Ratio Decidendi

The NCLAT said that the company was under Section 135(1) because the net profit that matters for CSR was above the required limit. The NCLAT also said that the spending rule under Section 135(5) uses 2 % of the net profit of the three financial years that came just before, not just the profit of one year. Therefore, the company had to set up a CSR Committee and follow the CSR rules.

Obiter Dicta / Important Observations

The Tribunal did not need a side note for the main issue. It talked about how to calculate the numbers and what the earlier losses meant for the company. Those comments are not a rule for all CSR accounting questions.

Significance / Link

The case shows that CSR rules are made by law and depend on a threshold. It is useful for Part A Question 3 because it shows that a company that meets the criteria cannot dodge Section 135 by using a profit calculation. For projects to help survivors, this case does not decide if an activity falls under Schedule VII; that decision must come from the law and the CSR Rules.

Case 3. Contract Law Fundamentals: Formation, Validity & Breach

Bhagwandas Goverdhandas Kedia v. M/s. Girdharilal Parshottamdas & Co.

Citation: AIR 1966 SC 543; (1966) 1 SCR 656, Judgment: 30 August 1965, Coram: J.C. Shah, K.N. Wanchoo and M. Hidayatullah, JJ.

Issue before the Court

When an offer and acceptance are made by telephone, where and when does the contract finish under Sections 3 and 4 of the Indian Contract Act, 1872?

Brief Facts

The parties talked over a long-distance phone call to make a contract. The offer came from Ahmedabad. The acceptance was spoken from Khamgaon. The dispute was about where the contract was made and which court could hear it.

Ratio Decidendi

The Supreme Court used the rules that govern how acceptance is communicated in the case of instant communication. The Supreme Court made a difference between instant communication and the postal rule and looked at when acceptance was truly communicated. This decision is an Indian authority that says telephone communication must be looked at through Sections 3 and 4 and the real circumstances of communication, not by automatically using the postal rule.

Obiter Dicta / Important Observations

The judgment has a discussion about technology changes and the need to use statutory words for new ways of communicating. Those observations help us see the reasoning but should not become a rule that every future electronic communication is treated the same as a telephone call. The legal effect of communications may also depend on later laws and specific facts.

Significance / Link

The case is directly relevant to employment and service contracts because modern contracts are regularly negotiated and accepted by instant electronic communication. It also shows why creating a contract must follow the rules on communication, not just the parties’ own intention.

CHRONOLOGICAL TABLE - 11 LANDMARK JUDGMENTS

Aureliano Fernandes v. State of Goa (2023)

Aureliano Fernandes v. State of Goa, Civil Appeal No. 2482 of 2014, judgment dated 12 May 2023, is a major modern Supreme Court decision on implementation of the POSH framework. The Court examined disciplinary proceedings arising from sexual-harassment allegations at Goa University and discussed the Vishaka Guidelines, Medha Kotwal Lele and the POSH Act. It emphasised the need for institutions to comply with the statutory mechanism and dealt with procedural fairness in the disciplinary process. This case is important for understanding the present enforcement environment after enactment of the POSH Act.

SOURCES

1. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 — Indian Kanoon https://indiankanoon.org/doc/1031794/

2. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 — Indian Kanoon

https://indiankanoon.org/doc/856194/

3. Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297 — Indian Kanoon
   https://indiankanoon.org/doc/48293767/

4. Aureliano Fernandes v. State of Goa — Supreme Court record/judgment, 12 May 2023

https://indiankanoon.org/doc/68723184/

5. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 — Indian Kanoon

https://indiankanoon.org/doc/579822/

6. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 — Indian Kanoon
   https://indiankanoon.org/doc/642436/

7. State of Punjab v. Major Singh, AIR 1967 SC 63 — Supreme Court judgment (Indian Kanoon search link retained for verification)
   https://indiankanoon.org/search/?formInput=State%20of%20Punjab%20v%20Major%20Singh

8. D.S. Grewal v. Vimmi Joshi, (2009) 2 SCC 210 — Supreme Court judgment, decided 17 December 2008
   https://www.legalauthority.in/judgement/d-s-grewal-vs-vimi-joshi-12333

9. Shri Santosh Meenakshi Textiles Pvt. Ltd. v. Registrar of Companies, Company Appeal (AT) No. 335 of 2018 — NCLAT, judgment dated 1 July 2019
   https://indiankanoon.org/doc/197328081/

10. Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co., AIR 1966 SC 543
    https://indiankanoon.org/doc/1386912/

11. Indian Contract Act, 1872 — India Code
    https://www.indiacode.nic.in/handle/123456789/2187

12. POSH Act, 2013 — statutory text / Section 4
    https://indiankanoon.org/doc/35616442/

13. Government of India information on Section 135 and Schedule VII CSR
    https://www.pib.gov.in/newsite/PrintRelease.aspx?relid=116728

14. Supreme Court of India — Gender Sensitisation and Internal Complaints Committee judgments
    https://www.sci.gov.in/gender-sensitization-and-internal-complaints-committee/

15. Bharatiya Nyaya Sanhita, 2023 — Section 75 (sexual harassment) — India Code / Ministry of Home Affairs
    https://www.indiacode.nic.in/handle/123456789/20062

16. Companies (Corporate Social Responsibility Policy) Rules, 2014 — Ministry of Corporate Affairs
    https://www.mca.gov.in/

17. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 — India Code
    https://www.indiacode.nic.in/
    

Swarn Keshav